Alternatives To Court
HandelontheLaw.com Staff Writer
While it is true that you will probably be venturing onto someone else’s turf, this is still your case and you – not the lawyers; not the judge; not the jury - will enjoy the rewards or suffer the losses. Resolve from the beginning that you are taking personal responsibility for your case.
Handling a legal issue does not automatically mean that you will be “sentenced” to a court trial. Fortunately, many state and local courts are interested in saving time, money and stress for you and for the legal system by offering alternatives. These alternatives save: time, by resolving your issue weeks, months and even years before a trial could resolve the same issue; money, by sidestepping the additional lawyer’s fees, expert’s fees and numerous costs attendant to a trial; stress, by giving you more power over the process and result while reducing antagonism between the parties. Consequently, alternatives to court are often advisable and readily offered by the legal system. Court clerks and lawyers are typically valuable sources of information about all these alternatives. Alternatives to court trials are given various names and procedures in different state and local courts but these alternatives tend to be forms of: mediation; arbitration; neutral evaluation; and settlement conferences.
“Mediation” allows the parties to settle a dispute between themselves with the assistance of a mediator. A mediator is an individual who is impartial and assists the parties in communicating their positions and goals to each other. Ideally, mediation assists parties who wish to preserve their personal or business relationships with each other and who are open to reaching a win-win result – one in which both parties give and receive concessions. Mediation is rarely an “either/or” situation that forces you to forego your day in court; many courts will allow you to try mediation and resort to a court trial if mediation fails. Given the cooperative nature of mediation, this alternative is essentially doomed when one or both parties are unwilling to compromise. Nevertheless, if you are willing to cooperate with the “other side” of your dispute in order to reach a win-win compromise, mediation may be your best course of action.
“Arbitration” is like an informal court trial. It is used when the parties want an impartial person to decide their issues while avoiding the greater time, expense and formality of a court trial. An arbitrator – an officially legally savvy, impartial individual - considers the arguments and evidence from both parties, usually with relaxed rules of procedure and evidence, and resolves the dispute. Here, parties typically choose between “binding” or “nonbinding” arbitration. In binding arbitration, the parties agree to give up their right to trial and to accept the arbitrator’s decision with no right to appeal. Nonbinding arbitration means that the parties reserve their right to court trial if either or both of them disagree with the arbitrator’s decision. Though nonbinding arbitration allows a subsequent trial, there can be penalties associated with demanding a trial and receiving an even worse result after trial. Since arbitration requires the parties to rely on a third party to resolve their issues and may carry additional penalties after an unsuccessful subsequent trial, parties who wish to retain greater control over the process and outcome might opt out of arbitration. Still, the lower expenditures of time, money and energy make arbitration a viable alternative for some parties.
“Neutral Evaluation” allows the parties to obtain an expert’s nonbinding opinion about their arguments’ strengths and weaknesses, along with one or more suggested resolutions of their dispute. The opinions and suggestions gained from this “dry run” of one or more case issues before an expert “evaluator” are then often used to negotiate the settlement of a case. This alternative tends to be used for highly technical issues and/or damages and is obviously most effective when both parties are open to an informed compromise.
The “Settlement Conference” is a common alternative to court trial. Parties and their lawyers often voluntarily have settlement conferences with the aid of a “settlement officer” or a judge to weigh the strengths and weaknesses of each side and to negotiate a settlement. If the parties and their lawyers do not voluntarily hold a settlement conference, they can pretty much count on a mandatory settlement conference, required by the court to avoid the additional time, expense and stress of yet another trial. Courts have crushing caseloads and do not have the resources to try the numerous cases brought before them; consequently, if you do not voluntarily negotiate to settle your dispute, the court will probably force you to negotiate.
A LIST OF DO’S AND DON’TS
DON’T be intimidated by the process or the people.
DO consult the appropriate court clerk and/or your lawyer regarding your state/local alternatives to court trials.
DO consider “Mediation” if you are willing to cooperate with the “other side” of your dispute in order to reach a win-win compromise.
DO consider “Arbitration” if you want an impartial person to decide your issues while avoiding the greater time, expense and formality of a court trial.
DO consider “Neutral Evaluation” if you seek an expert’s nonbinding opinion about the strengths/weaknesses of your case on one or more issues, along with suggested resolutions of your dispute.
DO consider a voluntary “Settlement Conference” to negotiate a settlement of your case.
DO expect a mandatory “Settlement Conference” if you do not voluntarily negotiate a settlement of your case.
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.
GENERAL LAW DOS AND DON'TS